Planning Enforcement Notices – What Happens If Compliance Is Unfeasible?

Published Thursday 14th June 2018, 05:00 AM

Planning enforcement notices must be obeyed, but what happens if compliance is simply not feasible? The High Court tackled that issue in a case concerning an extension to a £1.85 million house that was built without planning consent.

There was no dispute that a couple had built the three-storey extension to the back of their Victorian house without permission. The local planning authority issued an enforcement notice requiring total demolition of the extension and restoration of the wall to which it was attached to its original condition. The notice was subsequently upheld in somewhat modified form by a government planning inspector.

The deadline for compliance with the notice came and went without the extension’s removal and the council prosecuted the couple for non-compliance. They were, however, acquitted by a district judge on the basis that they had done all that they could have been expected to do in order to secure compliance.

In dismissing the council’s appeal against that ruling, the Court noted engineering evidence that restoring the wall would require removal of a steel frame from the back of the house. That was likely to have serious consequences for a building that was built on London clay and sand and was already visibly leaning.

Any restored wall would almost certainly subside at a different rate from the rest of the house, potentially de-stabilising the whole building. The works required would cost £360,000 and putting in pilings to support the house would add another £150,000 to that bill. The house was subject to a £2.4 million mortgage and, due to the blight caused by the dispute, was said to be well into negative equity.

The Court found that the works required would be exceedingly difficult and were more likely than not to fail. Although not a complete physical impossibility, such a project had been justifiably described as unfeasible. The Court expressed considerable sympathy for the council and described the prospect of the unauthorised extension remaining in place as troubling. Whether or not to take further enforcement action was, however, a matter for the council.